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HomeMy WebLinkAbout20-0629 FlowMSPCity of Elgin VIA E-MAIL Date: June 26, 2020 To: Rob Cagann, Fire Chief From: Michael R. Gehrman, Assistant Corporation Counsel Subject: License Agreement with F1owMSP Memorandum Attached pursuant to your request please find the signed agreement which I have renegotiated, redrafted, and had signed by FlowMSP, LLC. You should be sure to review the terms of the agreement, particularly as to price and materials to confirm that it conforms to your wishes and understanding. Once signed, you should return the . signed agreement to Bradley Martinez at bradley@flowmsp.com, and provide a copy to Kim Dewis for her records. MRG/vlm Attachment cc: Christopher J. BVA k (via -mail w/attachment) Approved: William A. Cogley 1 , I I I 1 111 I 1 , I I •J I 1 11 II 1 I 11 � 1 I II r rr •1 'llll T 111 I 1 I 'I I- II _ .� �JI 11 •1 I► . I; 1 1 Hill W 1 II I} 1 C 11 II A 11 I I I ' I r�l �I - J J 1 µl I _ 1 9 II n IIIII11 ,;,I 111 I - 1 1 1 L 11 LICENSE SUBSCRIPTION AGREEMENT THIS AGREEMENT is hereby made and entered into this 217Wday of , J-Lh �e-- 2020, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and Flow Municipal Service Provider, LLC, an Illinois limited liability company, (hereinafter referred to as "F1owMSP" or "Seller"). NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. PURCHASE. City shall purchase, and F1owMSP shall sell the goods and/or services described by Attachment A, attached hereto and made a part hereof. 2. TERMS, This agreement shall be subject to the price, terms and conditions contained herein, and as provided by Attachment A. 3. CONFLICT. In the event of any conflict between the terms and provisions of this purchase agreement and Attachment A hereto, the terms and provisions of this purchase agreement shall supersede and control. 4. LAWNENUE. This agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be solely in the Circuit Court of Kane County, Illinois. F1owMSP hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof, and F1owMSP agrees that service by first class U.S. mail to F1owMSP, 401 W. Bridge Street, Streator, IL 61364 shall constitute effective service. Elgin agrees that service by first class U.S. mail to City of Elgin, 150 Dexter Court, Elgin, IL 60120 shall constitute effective service. Both parties hereto waive any rights to a jury. This agreement and the enforcement thereof shall not be subject to arbitration. Notwithstanding anything to the contrary in any attachment hereto, this agreement is subject to and governed by the laws of the State of Illinois. 5. NO MODIFICATION. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 6. MERGER. This agreement embodies the whole agreement of the parties regarding the subject matter hereof. There are no promises, terms, conditions or obligations other than those contained herein regarding the subject matter hereof, and this agreement shall supersede, supplant and replace all previous communications, representations or agreements, either verbal, written or implied between the parties hereto regarding the subject matter hereof. 7. INTEREST. FlowMSP hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this agreement, and waives any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act (50 ILCS 50511, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this agreement. 8. SEVERABILITY. The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. 9. COMPLIANCE WITH LAW. Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this agreement, F1owMSP shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, F1owMSP hereby certifies, represents and warrants to the City that all of FlowMSP's employees and/or agents who will be providing products and/or services with respect to this agreement shall be legally authorized to work in the United States. F1owMSP shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this agreement. The City shall have the right to audit any records in the possession or control of F1owMSP to determine FlowMSP's compliance with the provisions of this section. In the event the City proceeds with such an audit, F1owMSP shall make available to the City FlowMSP's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 10. PAYMENT. City shall pay the total sum of $10,000 within thirty (30) days of delivery and any other full performance, or city's receipt of invoice, whichever is later. The aforementioned total sum is inclusive of all applicable freight, shipping and taxes. 11. TERM. This agreement shall commence on August 1, 2020 and terminate on August 1, 2021 12. LIMITATION OF DAMAGES. In no event shall either party hereto be liable for any monetary damages in excess of the purchase price contemplated by this agreement. In no event shall either party hereto be liable for any consequential, special or punitive damages, or any damages resulting from loss of profit. 13. OWNERSHIP AND USE OF DATA. Notwithstanding anything to the contrary provided for herein, City shall retain exclusive ownership of all City generated and/or supplied data. In no event shall such City related data or information be used by F1owMSP without the prior written consent of the City. 14. INDEMNIFICATION. To the fullest extent permitted by law, each party hereto shall indemnify and hold harmless each other, their officers, employees, boards and commissions, from and against any and all claims, suits, judgments, costs, excluding attorney's fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of either party hereto or their officers, employees, agents or subcontractors in the performance of this agreement, including but not limited to, all goods delivered or services or work performed hereunder. In the event of any action against either party hereto, their officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify and hold harmless, such action shall be defended by legal counsel of each parry's choosing at each party's own sole cost. 2 15. EXECUTION. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document." At the request of either party any fax or e-mail copy of this agreement shall be re -executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. Flow cUYlif 2LG-1-N /�% Signature Richard G. Ko al, City Manager Attest: Title City . erk E' Legal DeptlAgreeuient^.hlowMSII-License Subscription Agr-06-25-20-Clean.docx ATTACHMENT A Terms of Service Acknowledgement and Acceptance of Terms Thank you for using our products. FlowM ire (also referred to as `FlowMSP", "us", or "we"), provides this website (the "Site"), and the other webs te_, •..a,;~actively, the "Sits") with application integration platforms, tools- software, mobile app;ecatior s Stt0 : -.mod St?rtivas, (:t a "t n'vie;e"j subject to your compliance with all the terms, conditions, and notices contai wta o� :efeiencad iierein (the "Terms" or the `Agreement"). Any reference to "you" or "your' shall int;:uitt i;. '+ i?a a, k.ar,;va!,an. municipality, fire department or any OJIPi PFI'ty�u§in[g im, jdrvl,'P. n' Lair,.^ the Service or accessing the Sites, you y �I�!t to the ferms of Service, if II-L. ii (.0 itirie. `lei n ;i Slat[' the SBivIrtA. We reserve the right t0 change the Terms of Service fron•. tini+- w ::.oc, /cj ackno-,J:;o ge and agree that it is your responsibility to review the Terms of Service periodicb4y . i i-:arn of any modifications. Your continued access or use of the Services after such posting constitutes your coy sent to he bound by the modified Terms of Service. License Subject to your compliance with these Terra:., FiovJMSP grants you a limited, non-exclusive, non -sub licensable, revocable, non-transferrable lic-_i use to: (i) facress and use the Applications on the municipality's device solely in coi�riec:,ioii t,:.,; y;A.i k_zoo of tr;e Services; and (ii) access and use any content. 'information and related rnmerials that r ,ay be nude av:�dlsble through the Services, in each case :�UIE ,y fur the municipality's, ooiconimb, ci., i .1;`t; A,;y rights not expressly granted herein are reserved by riuwMSP aril its licensors Open Source and Other Third Marty Software The Software may contain or be accompiinie d by software code Provided by third parties ("Third Party Software") that is subject to separate iir.ont,c. !P°arts (lhe ' Third Party Terms"), and not any license contained in these Terms. Y`_ir usi, ct %; T ',:,. "cared Soff-are t:i cunjuni:Aion with the Service in a manner consistent with the Terms is pe rma,ed. -;awrcveryou may have broader rights under the applicable Third Party Terms and nothing in the ;e Terms is intended to impose further restrictions on your use of the Third Party Software. Eligibility You must be at least 18 years of age to ..jsi he ScMce. By i"2reeing to these Ten'ns, you represent and -varrant to us that: „1? you are at least 15 years ,:;J. b) yc,:t have not previously been Eusljc.rwle' o:.=t3:cve orcw, ti;e Service; trz) you have not previously been convicteri 0 P� crime ci viol_;tecl anV FAA or other aviation regulation; and (d) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf ora n ortity, organization, or municipality, you represent and warrant that you have the authority to #sent: tr:at organization to these Terms and you agree to be bound by these Terns on behalf of that organiz.=at :: User Responsibility ., are solely responsiole for er:suring ti-at , ou cornpiy �Mlh all applicable legal requirements for the operation of any aircraft, induu'ing zan,, 'J19t YOU detect and avoid other aircrafts. You must at all times comply with all applicauie iota! :3t: we. i ;tiunal, and rniernadonal laws and regulations related to Me operatics of unnicnner, so-r Sl dvv�r-z ; k Se,;,ice, in your territory of operation, including any applicable iaws with regard to privacy. 'Ycu wirl obtain and maintain all necessary licenses, cnnsent, and authorizations of any kind. Privacy Responsibilities You understand that by using the Servicn, vu are giver, access to certain information, including drone imagery, for your use solely ur, intande we firriu•tionality of the Service and as pen?pitted under these Terms. Ycti ary Foie P :,, �,, s:t,,.l;; fU, y0j r umi User Content and the consequences of posting your laser Conte:;; ;jr, she SelVice, iriulUdliig your use of the Service that results io v Jolation (if ar i,.,y, .i.t[ .. ui.i �-. ��. lid ;'�:f �.:...... .. ,.rrr: �:C:�.' s`i<=,:_ky err i nati oi-e, ;,gree that we in.'sv , : r %f n '. , ;, t ..account o suspend or :a inaxe your r prohibit your access to the Service �vili our ,...,uj r.--tice : you for violating any of the Terms of Service or for any other reason whatsoever. Upon ter,:: r,4;iot, of ycur :ise of the Service, you continue to be bound oy ihis Agreement. You inav iorr.iinut:: U!io3 by contacting customer service at FlOWMSP. If yuu terini,=a;z y,;u, &: ,c:,: rrl; v • ie:.;,,i:; ot'i: qa,,;. to pay rail outstanding fees, if any, relating to your Use of the Service incurred prior it, :,<,i. ,m oust. Account Information Accounts and Registration In order to use the Service, you crust register tk!- an account ,'ov agree that the information you provide to us when registering is accurate and tits, I!au vvifi keep it accurata and up-to-date at all times. You are Solely responsible for rreintainviu we cx,.ir­ ;v, I•iy ^: y.:vi j!�m and password. You agree to accept rzsiaoiisibilit;W #ar al! 8C.tiv„i- ,,:r ..•c:MA U ,:. ; -,.,u aCct_::tT. „ yCL Have reason to believe that your , oun, is no longer secure thee, yov rnvw _,,iiemately ncufy us. t'�wnership; Propriera,-e• R€e3nis Vice i-5 Ownec: Ope.,omd by L ,v v;?' 'i i,,: v:suai :. i:r-. f,�t:as, graphics, design, com pilation, mpilation, informmtion, data, cornputer coat (;ncilr3ir." -out c:: wcoe or ouie:;t code), products, software, services, and All other elements of the Service ("Mats! provided by FlowMSP are protected by intellectual property and other laws, Except as expressiv authorized by FlowMSP, you may riot make use of the Materials, In addition, we will own an Grid all right, title, and interest in and to any feedback, suggestions, information, or materials you convey io tis rc:ated is the Ser0f a in connection with your use of tine Service. You hereby assig!; to FlowMISr a!! ri•ii-- Milling and Payment Access to the Service requires you is p°..rcl"- s* a;:d to pay our automatically recurring nwnthll, or e;nnually access fees. Acres:::6awras cf the Service may require you to pay �idd,t,Uilal Teary, For rno,iini,+ . :7:.,E M -De r1.14-c:..uiomatically in advance on a monthly hes!s a!!d s non-refu!- •:,:.,!c 1'j o ? vts', , , rr_.j:• , ; partie, nicralis of service, I.,j1w8nt-v ivingreide rewr!d`i ji ;:t r,!i+ ' _ :,:: ,: eSi: t ." ti:,.:t . n account. In order to treat everyone equally, no except urls will User Content User Content License Grant. L; :,s:ii -,!, vier,, you grail,: o,.:lrli3;y a free and irrevocable, fully paid and royalty -free, transferao:e, suh IirGn as,, , Yv.;rt��.;ire .:r :rse ,c use, copy, reproduce, process, adapt, modify, publish, transmit, display, sell ar,d d"striouta your Lisar Cvt.tent which includes, but is not limited, to all hydrant information, flow rates, main sixes. locations, latitude"longitude, and any other date or information you provide. You also agree that f 11cw iSP anti Application provider may collect and use technical data and related intormation, kd', (jed bw r:ot limited to technical information about your device, system and application software, and Jtat are Ca'.hered to facilitate software updates, product support, development, revision a^o aa° -)Vn ; sr: vices FtowNISP Desires, Third -Party Services l-!a msp may providV iuc:is:t-0,09n. t .a c-xport infon»atian, including User tong?rat, to third party Fervit.es rs:3.`•!i ;;y usiroQ flne or 71hese tools, you agree that we may transfer that information to .1`:es applicaUc tar c-par'y zurvica. _(hiss; party services are not under our control, and we are not responsible for any t`iird platy service's use of your exported information. User Content Representations and Warranties You are solely responsible for your User C ;rrte +t and the consequences of posting or publishing User Content. By posting and publishing user uv:)tenl, you repress nt, and warrant that: you are the creator and owner of, or have the: r,.eees.ia:ry consenui. ano permissions to use and to authorize Drone Deploy and users of il,e Service to trWe and distribute. your User Content; and your User Content, and the use thereof as contemplated Oh-rei- d;. s foot and will not, (i) infringe any third -party right, i:rci iriir,g ally intel!ertur:l orepo,!' - priv<a.c :r :-,rietar}° rigi-W or (i ) slander, defame. libel, or invade the right of privacy, poblic kv or o-Lhoi prctpadr, aPyv c„li User Conten,� Disci,.: ;rac e We are under no obligation to edit or cuitlra, 11lsaj Coolent that yell or other users post or publish, and will .not be in any way responsible: or liable for User Content. FlowMSP may, however, at any time and without prior notice, screen, remove, edit, or block sir; j User Content that in our sole judgment violates these Terms or is otherwise obj.:ctionable. Yo:i DCi, t! Wo ivalve, yard a,er aby do waive, any legal or equitable rights or remedies you havu or ranwy have u ;:air,.:. 0 , to I.F ,;.::v r rtl, respect to User Content. Disclaimers; Limitation or Liability; Indemnity Disclaimer TFN- St-RVICES ARE PROVIDED "AS !"'. `-NO ;_��' r�Vt>. ":St_ir." FLOWMSP DISCLAIMS ALL REPRESENTATIONS AND WARRANT ! :F, i!;•":;-Li1'U, (_iR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF [tiAERC;rI��.€vl'.,�,i,!-!'Y, F !TIJ'E IE-S FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT. IN ADDI'i`ION, MAKES NO REPRESENTATION, WARRANTY, OR :WARANTEE REGARDING -rKE RELIABILITY AAELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR AN SERVICES OR GOODS REQUESTED THROUGH THE :JSe Ci- THE SERVICES 0%k r,A' t`.:i;".r_S'vd!LL ��' tININ'iERRUPI'ED OR ERROR -FREE. Limitation of Liability IN NO EVENT WILL FLCWII4SP BE €.iA t.- -(C- Y,-)J OR 10 ANY THIRD PARTY FOR ANY DAMAGES, INCIDENTAL, PUNITIVE, PERSONAL !NJ! RIFF'. WRONGFUL DEATH, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF tJSE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE SERVICES, A.r:i$!NIG OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, EVEN it PAS SEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FLOWIASP'S'f07IA,:.. i +--:;:g J-- Y i'0 101.;, FROlo AL.L CAUSES OF ACTION AND l ALL THEORIES OF LIABILITY, INAU 9.3;411 'C 'fO /kN 'WI! L NOT EXCEED THE AMOUNTS PAID FLril1Vf14SP SY YOU UND tl I I llc, ,+; Kam} IylE..tv'f IN THIS 91X (6)MONTH PERIOD PRIOR TO THE i VFN r GIVING RISF ; 0 : !III ltiE:ll..i Indemnity -oii agree to defend, indemr,4y e %: hoi.a .. als. �,!liiio:" hapliless from and against any demands, lu,,s, liability, clairns or expenses (inciuding atlirif nL ys' fees) nude against us by any third party due to or arising out of your use of the Service, Force Majeure FlowMSP will not be liable Tcr any fairurE: in the av ei!abi!ity of the Service or any other performance of its obligatiuns uniler ilte; e: '! .ir1.y on ace-:;uru of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of Goa. wear, gover,arlenta! action, labor conditions, earthquakes, material shortages, or anv other cause ,,h-a,. i:..:;Lyc nd FlowNISP's reasonable control, including any failure of collolai sLxvli l~{k� �(G'r: ' � li . •�+ if'i�f•'. I,'arvv .'� t'„ :1 t� :?i^71 tditF. your use of the Service. Dispute Resold i.J6 .-., 1 hese Tern -is provide that all ►,isp nas uelivgin you and -:,rill be resolved by BINDING ARBITRATION. You agree tc give up your right x go w ..ourt co assert or defend your rights under this contract. Your rights will be determired by ; n. taftil arb;trator Ord not a judge or jury, in accordance with the Arrrericail Arbitration A.�;ociatiur. aril. i ij ,, ,,al5;i canno, on brougnt as a cuss action.